Jan. 3, 2022
My New Year’s Resolutions for 2022
Will try to be optimistic about the future. Sorry, I can only try. But I can be certain about a resolution that is an acknowledgment: Let’s note our appreciation for all the staff, the clerks, court reporters, security personnel, research attorneys, and judicial assistants who make (get ready for a cliché) the wheels of justice grind at whatever speed.
1. Will quit mentioning the number of columns I have written for the Daily Journal. Nobody cares that this is #324, or somewhere around that. Anyone who does, let alone admit such a thing, should have their head examined.
2. Will not grouse about the grammatically incorrect but politically correct "their" to avoid the cumbersome "his or her," I mean, "her or his." See resolution 1 above.
3. Will not consciously make what could be interpreted as smart-ass remarks during oral argument. Prologue to example that follows: At the beginning of a previous oral argument via Zoom, I gave my usual welcome non-threatening greeting to the lawyers about to argue. "Welcome. Please keep in mind that what you see of yourself and your surroundings we also see, but do not worry if your dog barks or a child happens to wander into the picture. We understand. It's OK." Now the example: In the middle of a lawyer's argument, our three-judge panel heard a high-pitched, loud, sustained, horrifying, deathly, primal scream, or was it a shriek? Before my colleagues and I could process what happened, the shriek stopped but then began again. The lawyer kept on talking as though nothing happened. I tried to gather my quickly vanishing composure. I blurted out, "My heavens (or something like that), what is happening? Are you alright, sir?" ("Sir," quaint expression of an earlier age where civility... never mind.) Reply of the lawyer, nonchalantly, "Oh that's just my macaw." Ho Hum. Now, finally, the resolution: If I said, "Well, I hope that wasn't a comment on your argument." If I did say something like that, I will not say something like that again. Columnist's educational bonus: A macaw is a large parrot and known in zoological circles as a zygodactyl. Additional educational bonus: The first and fourth toes of zygodactyls point backwards.
4. Will not be a priggish purist by continually complaining about the refusal, or is it the inability, of people to use certain adjectives to describe an event, a person, an artist, a food, a movie, a book, or anything they like as "amazing," "incredible" or "fantastic" just because whatever it is... is... awesome. Horrible. And "incredible"? If something is "incredible," it is not credible, like misguided people who bolster their arguments with facts that do not exist. Will resist using expressions from earlier times. In my father's time, well-performed Dixieland music was "hot." Generally, what was good was "hot." In my day, if music was good, or anything was good, it was "cool." But then and now, desirable members of the opposite sex from the perspective of either sex were "hot." If the preceding sentence was offensive or hurtful to any reader, I suggest you move on to another column.
5. Will not criticize the California or any other Supreme Court... Well, if I do, I will do it tactfully and with the Code of Judicial Ethics in mind. Will not make a big deal that in a recent Supreme Court case there appears this language: "The dispute in this case centers around the chapter of the Health and Safety Code entitled..." I am sure "they" meant to say "revolves around." To center around is illogical. The center of a circle is... well, it's the center, like a dot. The dispute could center on the chapter. Or it could revolve around the chapter. I will not criticize the usual response, "We all know what they or the author meant." I suppose I should just let it go... but, would it not be better if... ? Never mind.
6. Speaking of Supreme Courts... Will not continue to criticize what I think are unnecessarily long, verbose opinions that often lose, at least lose this reader. Do we gain or lose insight from partially concurring and dissenting opinions to parts of the majority opinion? On occasion, longer is necessary, but longer is not always better. Judicial opinions need not be ersatz law review articles, or overwrought political harangues. Justice Holmes, and for the most part Justice Cardozo, wrote short, concise opinions. So did Justice Traynor. So why do we not use as a model those iconic (sorry, strike the ubiquitous "iconic" and substitute something like "eminent") jurists, and commit ourselves to write with the clarity they treasured? Yes, many statutes today are near incomprehensible; what else is new? Still no excuse. Oh, and one other thing: Will try not to complain about the Supreme Court letting issues fester for intolerable periods of time, while appellate courts write a variety of conflicting decisions that fragment any notion of justice and foster conflict rather than resolution.
7. Will not swear at my cat when he walks on the keyboard of my laptop and deletes the significant (better than "landmark") opinion I have just finished. Will acknowledge that he did me and everyone else a favor.
8. Will do my best to refrain from criticizing those who take credit for ideas and programs that others have thought of, promoted, and helped initiate.
9. Will try to be optimistic about the future. Sorry, I can only try. But I can be certain about a resolution that is an acknowledgment: Let's note our appreciation for all the staff, the clerks, court reporters, security personnel, research attorneys, and judicial assistants who make (get ready for a cliché) the wheels of justice grind at whatever speed.
10. And Happy New Year and our commitment to make it so.